Sentence Appeal County Court

Court of Appeal- Appeal against sentence

The process of Appeals for sentence appeals has amended by the recent Practice Direction issued in 2011.

The Main Points of Practice Direction No.2 of 2011 :

• Counsel who appeared at the plea and/or their instructing solicitors will have to advise the client in conference as to the view of Counsel as to the likelihood of success of an appeal.
• Further to that Counsel who appeared at the plea will then have to confirm in writing “as soon as practicable”  to the solicitor who briefed them to appear.
• If the avice of Counsel's advice is to appeal the sentence then The Court wants the Barrister who appeared on the plea to prepare the grounds of appeal and accompanying “written case”. Obviously sometimes the ground of appeal involve Counsel not doing things properly and in that situation another Barrister could prepare the material. The main issue with changing counsel/barrister is that the 28 day limit runs regardless of a change in Counsel.
• Primarily a written case is to allow the Court to understand the facts and issues without oral argument.
• Solicitors are not allowed to file an appeal just on the basis that they are “instructed to do so” by their client. A solicitor has to consider the grounds to be reasonably arguable in Court and be prepared to argue them before lodging the appeal
  
• The application for leave to appeal against a sentence and the accompanying written case must be filed within 28 days after the day on which the applicant was sentenced.  

The Written Case:

It is very important to realize what is involved in a written case. It is not a simple document and must include within a 10 page limit, amongst other things, the following:

a) Specify the conviction or sentence from which leave to appeal is sought.

b) In the case of an application for leave to appeal against sentence, identify the statutory maximum penalty and any other relevant statutory provisions.

c) Summarise the relevant facts.

d) Under the heading of each ground of appeal:

i Outline argument and reference to each authority relied upon or sought to be distinguished.

ii Identify each passage of transcript considered necessary to be taken into account. This can be by reference to notes.

Prosecution response to Appeal

The Registry must provide the Prosecution with a notice of application within 7 days after it has been filed. 

The Prosecution then have 21 days in which to respond with a detailed point by point analysis if they want to.

Perfecting the grounds

At a later point the written case can be amended once the trascripts have arrived. Obviously at the earlier stage the appeal will generally be running off Counsel's and instructing solicitors notes of the hearing.

Transcripts from Victorian Government Reporting Service (VGRS):

Solicitors will not be provided with a transcript of the charge, plea or sentence before the written case is filed. A solicitor can apply to VGRS by filling out a form for a copy of an audio file will be provided within 48 hours.


The appeal is not a re-hearing of the facts of the matter.

The Court of appeal can do the following during an appeal hearing;

a)  Allow the appeal. The Court may order a re-trial or an acquittal.

b) Dismiss the appeal.

c)  Increase the penalty.  Note that Court of Appeal has power to increase sentences on appeal. But the practice has been for the Court of Appeal to warn applicants of the risk if they proceed. If that occurs it is necessary to file a Notice of Abandonment with the Court of Appeal Registry.

The Court of Appeal also has power to dismiss the appeal even if there has been an irregularity in the trial. It does this if the Court of Appeal decides that there has been no substantial miscarriage of justice. This is often known as “applying the proviso”.

Appeal Bail

An Applicant serving a short sentence of a sentence that is likely to expire before the appeal is likely to be heard – for instance a relatively short term of imprisonment with a non-parole period or a term of imprisonment that is partially suspended then consideration should be made to applying for bail pending appeal. The test is “exceptional circumstances” but in a situation where the applicant falls in the situation above (and providing there is a reasonable argument on appeal) then bail may be a possibility. The Criminal Procedure Act 2009 refers explicitly to granting bail pending appeal (s310).

We are extremely experienced Appeals solicitors. We have a great deal of experience in handling complex Court of Appeal appeals. If you need advice or representation in an appeal phone us today.

Level 5/221 Queen St Melbourne, Victoria (03) 9670 5111
Broadmeadows (03) 9351 1455       Heidelberg (03) 9458 3700